Co-operative Bank of Kenya Limited v Mwangangi (Environment and Land Appeal E012 of 2023) [2024] KEELC 7179 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay where Respondent argued only a reference under Rule 11 of the Advocates (Remuneration) Order would do
The court held it had jurisdiction because the application sought stay of the judgment/decree, not of costs only, and the costs had already been paid.
The Respondent argued that a stay touching on costs required a reference under Rule 11 of the Advocates (Remuneration) Order, 1962. The court noted it was not in dispute that the Appellant had paid the costs, and that the application sought stay of the judgment/decree generally, not of costs. Jurisdiction was therefore present.
Substantial loss
The Applicant would suffer substantial loss if the title deed were released and the Respondent disposed of the property to third parties.
Applying Charles Wahome Gethi, Mukuma v Abuoga and Tropical Commodities, the court found the apprehension that the Respondent might dispose of the suit property to third parties upon release of the title deed, making recovery difficult if the appeal succeeds, amounted to substantial loss.
Unreasonable delay
The application filed on 17th January 2024, following judgment on 8th December 2023, was filed without delay.
The court compared the date of judgment with the date of filing and concluded the application was made promptly, satisfying the second condition under Order 42 Rule 6(2).
Security for costs
Although no security had been offered, the court could direct security; the Applicant was ordered to deposit the title deed and Kshs 200,000/=.
Relying on Arun C Sharma v Ashana Raikundalia on the purpose of security under Order 42, the court held that failure to offer security was not fatal since the court could direct it, and imposed the title deed deposit and a cash deposit in default of which stay lapses.
Legal principles established
#- An applicant for stay of execution must prove substantial loss, not merely assert it, and the three conditions under Order 42 Rule 6(2) must all be satisfied.
Court orders
#- 1.An order of stay of execution of the judgment/decree delivered by Hon. F. Makoyo, SPM on 8th December, 2023 granted pending the hearing and determination of the appeal
- 2.The Applicant shall deposit the title deed for the suit property within seven (7) days from the date of the ruling
- 3.The Applicant shall deposit Kshs 200,000/= within fourteen (14) days from the date thereof and in default the stay orders shall automatically lapse
- 4.Costs to abide with the outcome of the Appeal
- On appeal from
- Principal Magistrate's Court, Kilungu
- Kilungu PMCC ELC Case No E019 of 2021
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Co-operative Bank of Kenya Limited v Mwangangi (Environment and Land Appeal E012 of 2023) [2024] KEELC 7179 (KLR)", Case Analysis (2024). Appeal from Kilungu PMCC ELC Case No E019 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7179/eng@2024-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.